COURT OF APPEALS

DECISION

DATED AND FILED

February 9, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP1406-CR Cir. Ct. No. 2016CF61

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

TIMOTHY J. OGREN,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Price

County: ANN KNOX-BAUER, Judge. Affirmed. 

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Timothy Ogren appeals from a judgment 

convicting him of two counts of sexual assault of a child and an order denying his 
No. 2019AP1406-CR

2

postconviction motion. Ogren claims his trial counsel rendered ineffective 

assistance by failing to impeach a State’s witness with prior convictions, and by 

failing to investigate and present exculpatory witnesses for the defense. We 

conclude Ogren has failed to demonstrate prejudice from his counsel’s alleged 

errors. Accordingly, we affirm.

BACKGROUND

¶2 The State charged Ogren with one count of first-degree sexual 

assault of a child under the age of twelve by intercourse and two counts of 

first-degree sexual assault of a child under the age of thirteen by sexual contact. 

The charges were based on the allegations of a four-year-old girl, Tabitha, that 

Ogren had put his “pee pee” in her mouth and in her “butt crack” while both were 

staying at the house of Tabitha’s maternal grandparents, Rachel and James.

1

¶3 At trial, the State played a video recording of a forensic interview 

with Tabitha. When asked if there were certain parts of a girl’s body that other 

people should not see or touch, Tabitha said, “the butt, and the dee-dee, and the 

boobies.” Tabitha identified the “dee-dee” as the vaginal area on a drawing of a 

female body. 

¶4 Tabitha initially told the interviewer that no one had seen those parts 

of her body. However, when asked if someone ever wanted to see her butt, she 

 

1

 Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2017-18), we use 

pseudonyms when referring to the victim, her mother and maternal grandparents, and another 

child who testified to other acts evidence.

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted. 
No. 2019AP1406-CR

3

responded that Ogren “likes to wrestle with me” and added that “he likes to lick 

my dee-dee and my butt.” She said, Ogren licked her like “a dragon,” or “a 

dog” two times on the bed in her mother’s room at her grandparents’ house, while 

her grandparents were downstairs watching television. 

¶5 Tabitha also told the interviewer that, on the same two days that 

Ogren licked her “dee-dee” and butt, he also told her to “drink the milk” from his 

“pee-pee.” Tabitha identified the “pee-pee” as the crotch area on a drawing of a 

male body. She said that Ogren got “sweaty and hot” when he asked her to “drink 

the milk,” and that he also had her touch his “pee-pee.”

¶6 Tabitha said she had lived with her grandparents in Park Falls for 

“one whole day.” She did not make any other assertion as to when the incidents 

had occurred. She also had difficulty answering questions about the difference

between truth and lies. 

¶7 Rachel testified that her daughter Nancy and granddaughter Tabitha 

had come to live with Rachel and James at their house in Park Falls in 

August 2015. According to Rachel, Ogren also stayed at their Park Falls house 

“pretty much full time” between December 2015 and September 2016. Ogren

shared Nancy’s bedroom upstairs, while Tabitha either slept in the upstairs 

bedroom with Ogren and her mother or in a downstairs bedroom with Rachel and 

James. There were times when Ogren was alone in the house with Tabitha and 

times when Ogren was alone with Tabitha upstairs while Rachel and James were 

downstairs and Nancy was at work.

¶8 Nancy likewise testified that Ogren had lived with her at the 

Park Falls house beginning in December 2015; that Ogren shared an upstairs 

bedroom with her and sometimes Tabitha; and that Ogren was sometimes in the 
No. 2019AP1406-CR

4

house with Tabitha, Rachel and James while Nancy was at work. Nancy further 

testified that the upstairs bedroom was not visible from downstairs, and that 

someone downstairs would have no idea what was going on in the upstairs 

bedroom. 

¶9 The State also presented the videotaped interview of a six-year-old 

child, Natalie, who alleged that Ogren had assaulted her at the home of Ogren’s 

mother, Jacqueline Burt, when Natalie was in kindergarten and both she and 

Ogren were staying at Burt’s house in Sawyer County. Natalie said that on three 

different occasions while Ogren was babysitting her, Ogren touched her private 

area with his finger under her pajama bottoms and underwear. 

¶10 Ogren took the stand in his own defense. He denied having ever 

touched either Tabitha or Natalie inappropriately. He claimed that he had never 

been alone in a house with Natalie, and that she was just “mixed up.” 

¶11 Ogren also denied ever having been alone in the Park Falls house 

with Tabitha. However, he did not deny having been alone with Tabitha in the 

upstairs bedroom that he said he shared with Nancy and Tabitha “for at least three 

months” while he bounced back and forth between his mother’s house and the 

Park Falls house. To the contrary, Ogren corroborated Tabitha’s statement that he 

would wrestle with her, and he said that the upstairs bedroom where they played 

was where he spent “pretty much 90 percent of the time” that he was in the 

Park Falls house. Sometimes, he would just be wearing his boxer shorts in the 

bedroom due to the heat. 

¶12 Ogren suggested that Tabitha’s reference to drinking his milk may 

have come either from his attempts to get Tabitha to drink “actual milk that comes 

from a cow,” or from a time when he used the bathroom while she was taking a 
No. 2019AP1406-CR

5

bath. Ogren claimed Tabitha had seen his penis in the bathroom and asked him if 

that was where milk came from. He testified that he had reported that incident to 

James.

¶13 When asked why Tabitha would say that Ogren liked to lick her 

vaginal area, Ogren said Tabitha liked to jump on him like he was a jungle gym

and thought it was funny to sit on his head once in a while. Ogren also claimed 

that Tabitha might have seen Ogren and Nancy having sex one night because the 

following morning Tabitha asked Nancy if Ogren could do to Tabitha what he had 

done to Nancy. 

¶14 On rebuttal, James denied that Ogren ever told him about an 

exposure incident in the bathroom, and Nancy denied any conversation about 

Tabitha asking whether Ogren could do to her what he did to her mother. 

¶15 The jury found Ogren guilty on the count of sexual assault by 

intercourse (based on Ogren performing an act of cunnilingus on Tabitha) and on 

one of the two counts of sexual assault by sexual contact (based on Ogren causing 

or allowing Tabitha to touch his penis). After the circuit court sentenced Ogren to 

consecutive terms totaling thirty-five years’ initial confinement and thirty years’

extended supervision, Ogren moved for a new trial based upon ineffective 

assistance of his trial counsel and/or newly discovered evidence. Ogren claimed 

that his trial counsel was ineffective for failing to impeach Rachel with a known 

prior conviction, failing to discover and impeach Rachel with a second prior 

conviction, and failing to interview and produce Ogren’s parents as defense 

witnesses. 

¶16 At the postconviction hearing, Burt testified that her son was living 

at her house in Sawyer County during the entire period of time over which he was 
No. 2019AP1406-CR

6

alleged to have committed the assaults against Tabitha, except for a brief time 

when he lived with Nancy in a mobile home in Fifield. Burt claimed that when 

Ogren visited the Park Falls house, he and Nancy would go upstairs and Tabitha 

would stay downstairs by her grandparents, so Ogren was never alone with 

Tabitha. Burt accompanied her son on three or four such visits. Burt further 

testified that Ogren was living with her during the period of time he was alleged to 

have assaulted Natalie. She said she would not have allowed Ogren to have been

alone with Natalie in Sheboygan County (where Natalie primarily lived), because 

that would have violated his bail or probation conditions of “house arrest,” and her

own “house was on the line for that.” 

¶17 Ogren’s father, Gordon Ogren, testified that he believed Ogren had 

been living with his mother during the time frame when he was alleged to have 

assaulted Tabitha, but he thought Ogren had been going to Park Falls “fairly 

often” to visit for three or four days at a time. Gordon did not know whether 

Ogren would have been alone with Tabitha at the Park Falls house because he was

not there more than one time. Gordon also testified that a condition of his son’s 

probation during the time he was alleged to have assaulted Natalie prohibited him 

from leaving the county. He said Ogren would have no way and no reason to go 

to Sheboygan County. 

¶18 Counsel for both parties agreed that the circuit court had ruled 

Rachel could be impeached with a 1993 conviction for sexual assault of a child, 

but that neither party had asked Rachel at trial about prior convictions. The court 

took judicial notice that Rachel had a second prior conviction for operating after 

revocation (OAR) in 2005 that had not been discovered by the parties due to a date 

of birth error listed in the record. 
No. 2019AP1406-CR

7

¶19 The circuit court denied the motion for a new trial. It first noted that

it probably would not have allowed the OAR conviction to be used for 

impeachment because it was a low-level misdemeanor that did not involve truth or 

veracity and was over twelve years old at the time of the trial. In any event, the 

court concluded that impeaching Rachel with the sexual assault conviction would 

not have changed the outcome of the trial because Rachel’s testimony about the 

living arrangements in her house was corroborated by Nancy, James, and Ogren 

himself. The court further concluded that the testimony of Ogren’s parents would 

not have changed the outcome of the trial because they had no personal knowledge 

about most of the time Ogren spent at the Park Falls house.

DISCUSSION

¶20 A claim of ineffective assistance of counsel requires the defendant to 

demonstrate two things: (1) deficient performance by counsel; and (2) prejudice 

resulting from that deficient performance. State v. Swinson, 2003 WI App 45, 

¶58, 261 Wis. 2d 633, 660 N.W.2d 12. We will not set aside the circuit court’s 

factual findings about what actions counsel took or the reasons for them unless 

they are clearly erroneous. State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 

(1985). However, whether counsel’s conduct violated the constitutional standard 

for effective assistance of counsel is ultimately a legal determination that this court 

decides de novo. Id. We need not address both components of the ineffective 

assistance test if the defendant fails to make a sufficient showing on one of them. 

Swinson, 261 Wis. 2d 633, ¶58. 

¶21 Here, we conclude that Ogren has failed to satisfy the prejudice 

element of the test for ineffective assistance of counsel. A defendant demonstrates 

prejudice by showing there is a reasonable probability that, but for counsel’s 
No. 2019AP1406-CR

8

unprofessional conduct, the result of the proceeding would have been different. 

Strickland v. Washington, 466 U.S. 668, 694 (1984). The “reasonable 

probability” standard does not require a showing that it is “more likely than not” 

that a jury would have acquitted the defendant. State v. Sholar, 2018 WI 53, 

¶¶44-45, 381 Wis. 2d 560, 912 N.W.2d 89 (citing Strickland, 466 U.S. at 693). 

Still, the “reasonable probability” standard is tied to the reviewing court’s 

confidence in the outcome, and the “likelihood of a different result must be 

substantial, not just conceivable.” Id., ¶45; see also Harrington v. Richter, 562 

U.S. 86, 111-12 (2011) (citing Strickland, 466 U.S. at 693). 

¶22 Counsel’s failure to impeach Rachel with her two prior convictions 

does not undermine our confidence in Ogren’s convictions. As to Rachel’s OAR

conviction, the circuit court could properly have disallowed use of the conviction 

for impeachment purposes pursuant to WIS. STAT. 906.09(2). Even if both 

convictions had been introduced, there is no substantial likelihood that such 

impeachment would have altered the outcome of the case, given that Rachel’s 

testimony about the living arrangements in her house was corroborated by that of 

several other witnesses, as described above.

¶23 Ogren contends that his parents’ testimony would have further 

undermined Rachel’s testimony along with that of all the other witnesses who 

testified that Ogren lived in the Park Falls house throughout the entire time period 

when the assaults on Tabitha were alleged to have occurred. However, the 

opinions of Ogren’s parents that Ogren was never alone with Tabitha in the 

Park Falls house would not have carried much weight because neither of Ogren’s 

parents spent much time in that house. Rather, both of Ogren’s parents admitted 

that—at the very least—Ogren visited Tabitha there. Moreover, Tabitha did not 

claim that she was alone in the house when the assaults occurred. She said her 
No. 2019AP1406-CR

9

grandparents (that is, Rachel and James) were downstairs. In short, disputes about 

whether Ogren was living in or just visiting the Park Falls house, and exactly how 

often he was there, would not change the fact that—by his own admission—Ogren 

had the opportunity to commit the assaults against Tabitha in the place she 

described, and during the time period alleged.

¶24 Similarly, Ogren’s parents’ testimony that Ogren never went to 

Natalie’s house in Sheboygan County was irrelevant because the assault against 

Natalie was alleged to have taken place at Burt’s house in Sawyer County. 

Ogren’s own testimony established that Ogren and Natalie stayed together in 

Burt’s house for a period of time. We conclude that Ogren was not prejudiced by 

his trial counsel’s failure to interview Ogren’s parents or present them as 

witnesses. Accordingly, the circuit court properly denied Ogren’s motion for a 

new trial.

By the Court.—Judgment and order affirmed. 

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.